The Case of the Notorious RBG
Examining the life and legend of Ruth Bader Ginsburg
On June 14, 1993, President Bill Clinton announced his pick to replace retiring Justice Byron White on the U.S. Supreme Court. "Ruth Bader Ginsburg cannot be called a liberal or a conservative," Clinton declared of his nominee. "She has proved herself too thoughtful for such labels."
The president was half right. Ginsburg, who was 60 years old at the time, already had a long and distinguished record as a litigator, a law professor, and a judge on the prestigious U.S. Court of Appeals for the District of Columbia Circuit. She was undeniably thoughtful.
At the same time, Ginsburg was undeniably a liberal. Indeed, she was arguably one of the greatest liberal lawyers of her generation. Today, after serving 25 years on the high bench, Ginsburg stands as the outspoken leader of its liberal wing.
Meanwhile, outside of the courtroom, Ginsburg has emerged as a sort of judicial rock star. Popularly known among her fans as the "Notorious RBG" (a play on the name of the late rapper Notorious BIG), Ginsburg is now a bona fide celebrity, widely feted throughout American culture. In the last few years alone, she has been the subject of admiring books, including a fawning new biography by historian Jane Sherron De Hart (Ruth Bader Ginsburg: A Life), a glowing documentary (RBG), and a celebratory exhibit at the Skirball Cultural Center in Los Angeles (Notorious RBG: The Life and Times of Ruth Bader Ginsburg). Late Show host Stephen Colbert has interviewed her about her fitness regime. Saturday Night Live has paid tribute to her in a series of skits. Felicity Jones, the star of the 2016 Star Wars movie Rogue One, will be playing her in a new feature film.
As for Ginsburg's legions of fans, they are not exactly shy about showing their love. They carry RBG tote bags, drink from RBG coffee mugs, and use smartphones housed in RBG cases. They wear RBG T-shirts, hats, jewelry, even Halloween costumes. On the internet, Ginsburg memes and viral videos are common currency. Search the web for "Ruth Bader Ginsburg tattoos" and you'll find many colorful results. As the journalist Irin Carmon writes in the introduction to her runaway 2015 bestseller, Notorious RBG (HarperCollins), "we are frankly in awe of what we've learned about her."
In short, it's become fashionable to make a fuss about Ginsburg's gloriousness. While her life and accomplishments are genuinely impressive, though, the Notorious RBG is far from perfect.
On March 24, 2009, Deputy Solicitor General Malcolm Stewart told the Supreme Court that the federal government possessed the lawful power to ban books if those books happened to mention the name of a candidate for federal office and were published by a corporate entity in the run-up to the federal election in which that candidate was competing.
"It's a 500-page book, and at the end it says, so vote for X, the government could ban that?" asked an incredulous Chief Justice John Roberts during that day's oral arguments in Citizens United v. Federal Election Commission. Yes, the deputy solicitor general conceded. Under the government's theory of the case, that's precisely what he was saying. "We could prohibit the publication of the book," Stewart declared.
Ten months later, a majority of the Supreme Court rejected that view, overturning the campaign finance regulations at issue for violating the First Amendment. Among the dissenters was Justice Ruth Bader Ginsburg, who was apparently untroubled by the censorious implications of the government's stance. Two years later, Ginsburg urged her colleagues to hear a new case that would give "the Court the opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway."
It was a familiar scene. Since joining the Court in 1993, Ginsburg has, in case after case, proven herself to be a reliable champion for the liberal side. When the Court declared the University of Michigan's affirmative action program for undergraduate admissions unconstitutional in Gratz v. Bollinger (2003), Ginsburg accused the majority of turning a blind eye toward "the stain of generations of racial oppression [that] is still visible in our society." When the Court came within one vote of declaring the Patient Protection and Affordable Care Act unconstitutional in National Federation of Independent Business v. Sebelius (2012), Ginsburg denounced the "stunningly retrogressive" idea that Congress might lack the lawful power to force individuals to buy health insurance.
In 2005, when the city of New London, Connecticut, wanted to broaden its tax base by bulldozing a working-class neighborhood and handing the land over to private developers, Ginsburg dismissed the homeowners' constitutional objections out of hand. "The critical fact on the city side," she told Institute for Justice lawyer Scott Bullock, lead attorney for the homeowners, during oral arguments in Kelo v. City of New London, "is that this was a depressed community and they wanted to build it up, get more jobs." Ginsburg went on to join Justice John Paul Stevens' majority opinion, which upheld the city's eminent domain scheme on the grounds that government officials should enjoy "broad latitude in determining what public needs justify the use of the takings power."
Select almost any case that has divided the Supreme Court along ideological lines in recent years and you'll find Ginsburg firing similar salvos from the left.
The Feminist Lawyer
Ginsburg began her legal career in the mid-1950s as a top student at Harvard Law School, where she faced blatant institutional sexism at nearly every turn. She was prohibited, for example, from using Lamont Library, which held the university's large collection of old magazines and journals—essential fodder for legal research—because entry was officially restricted to men. A few years later, she was passed over for a well-deserved Supreme Court clerkship with Justice Felix Frankfurter, a New Deal–era legal icon, because Frankfurter had no interest in hiring a woman.
Despite these and other obstacles, Ginsburg proceeded to leave her mark on the law. Most notably, she co-founded the Women's Rights Project at the American Civil Liberties Union (ACLU) in 1972; she would also serve as an ACLU board member. Taking a page from National Association for the Advancement of Colored People lawyer (and future Supreme Court justice) Thurgood Marshall, the architect of the campaign to overturn Plessy v. Ferguson (1896) and its racial doctrine of "separate but equal," Ginsburg took the lead in developing a long-term legal strategy designed to unsettle and ultimately overturn those Supreme Court precedents that formally enshrined the inequality of women.
Will Justice Ruth Bader Ginsburg be remembered as a legal trailblazer or burned in effigy for not stepping down while Obama was President?
One such precedent was Muller v. Oregon (1908), in which the Supreme Court had unanimously upheld a state law limiting female laundry employees to working no more than 10 hours a day. The Court did so thanks in large part to an infamous brief, filed in the case by Progressive Era lawyer (and future Supreme Court justice) Louis Brandeis, who marshaled a mountain of arguments and statistics "proving" that women required special protection by the state. "The overwork of future mothers," he wrote, "directly attacks the welfare of the nation." In other words, Brandeis maintained, because women are responsible for giving birth to future generations, their bodies should be viewed as a sort of collective property in the eyes of the government.
The Supreme Court would adopt that very view. "As healthy mothers are essential to vigorous offspring," the justices declared, "the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race."
Ginsburg also set her sights on Goesaert v. Cleary (1948), in which the Court had upheld a Michigan law forbidding women from working as bartenders unless they were "the wife or daughter of the male owner." Valentine Goesaert, who owned a bar in Dearborn, challenged the law for violating her right to tend bar at her own establishment. "We cannot give ear to the suggestion that the real impulse behind this legislation was an unchivalrous desire of male bartenders to try to monopolize the calling," wrote Justice Felix Frankfurter (the same justice who later refused to hire Ginsburg as a clerk). In fact, he declared, "Michigan could, beyond question, forbid all women from working behind the bar."
Ginsburg and her allies proceeded to litigate a series of test cases, all aimed at destroying the legal rationales underlying those sexist precedents. "The 1970s cases in which I participated under ACLU auspices," Ginsburg later explained, "all rested on the same fundamental premise: that the law's differential treatment of men and women, typically rationalized as reflecting 'natural' differences between the sexes, historically had tended to contribute to women's subordination—their confined 'place' in man's world—even when conceived as protective of the fairer but weaker and dependent-prone sex."
One such test case came to be known as Craig v. Boren (1976). At issue was an Oklahoma law that prohibited the sale of "near beer" (3.2 percent alcohol by volume) to males under the age of 21, while at the same time allowing women ages 18-20 to purchase the beverage. The state justified this uneven approach as a legitimate exercise of its public health and safety powers on the grounds that men are less responsible drinkers.
Ginsburg saw it as an unconstitutional denial of equal treatment and went on the attack. First, she worked as a sort of unofficial co-counsel to the private lawyer who initially filed the case, providing crucial strategic advice as well as many useful tips on writing a better SCOTUS brief. She also filed a weighty amicus brief of her own on behalf of the ACLU, which argued that the state's ostensible health and safety justifications could not stand up to scrutiny.
The Supreme Court ultimately agreed with that assessment. "Clearly, the protection of public health and safety represents an important function of state and local governments," the Court observed. Oklahoma's claims, however, "cannot support the conclusion that the gender-based distinction closely serves to achieve that objective and therefore the distinction cannot…withstand equal protection challenge."
To be sure, Ginsburg and her allies did not prevail in every such case. But her pioneering legal advocacy unquestionably helped to move the law in the direction that she wanted.
'Heavy-Handed Judicial Intervention'
Ironically, given her record as a groundbreaking feminist lawyer, Ginsburg's bona fides would later be called into question in some feminist legal circles over her views on Roe v. Wade (1973), the famous Supreme Court decision recognizing a woman's constitutional right to have an abortion.
The trouble started with a 1985 North Carolina Law Review article titled "Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade." In it, Ginsburg argued that while the Texas statute at issue in Roe (which banned all abortions except where the life of the mother was at stake) certainly deserved to be struck down, the Court had "ventured too far" when it "called into question the criminal abortion statutes of every state." This "heavy-handed judicial intervention was difficult to justify," she argued, "and appears to have provoked, not resolved, conflict."
Ginsburg also questioned the legal foundations of Roe itself. In his majority opinion, Justice Harry Blackmun had grounded the right to abortion in "personal privacy, somehow sheltered by due process," Ginsburg wrote. It would have been much better, she maintained, if the right had been rooted in "a constitutionally based sex-equality perspective."
Ginsburg doubled down on her critique eight years later in a widely discussed guest lecture at New York University School of Law. The Texas statute under review in Roe "intolerably shackled a woman's autonomy," Ginsburg noted. But "suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the 20-year controversy we have witnessed?"
For some feminist legal observers, that position sounded a little too much like the views expressed by Ginsburg's old colleague on the D.C. Circuit, Judge Robert Bork, who had denounced Roe as "the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century."
Of course, Bork also maintained that abortion rights deserved no constitutional protection whatsoever from the courts, while Ginsburg argued that they should be protected, but in a more limited way, and that the right should have been grounded in a different constitutional principle. Still, there is no denying that Ginsburg caused real disquiet in feminist quarters at the time by questioning Roe's reasoning while also insisting that the case actually gave the anti-abortion movement a boost.
Today's young feminists might not like the sound of that either. Which perhaps explains why so few of Ginsburg's current hagiographers tend to grapple with this particular aspect of her jurisprudence—if they even bother to mention it at all.
Contempt of Court
In June 2016, Justice Ginsburg sat down for a wide-ranging interview with The New York Times. Asked about the upcoming presidential election, the Notorious RBG let loose, declaring that she "can't imagine" Donald Trump, then the Republican nominee, winning the White House. "For the country, it could be four years. For the Court, it could be—I don't even want to contemplate that." She then joked about moving "to New Zealand" if Trump won. A few days later, speaking to CNN, Ginsburg denounced Trump as "a faker" who "has no consistency about him.…How has he gotten away with not turning over his tax returns?"
Ginsburg's fan base loudly cheered her on. The feminist site Bustle, for example, featured her anti-Trump remarks in a list of "13 Spicy Ruth Bader Ginsburg Quotes & Clapbacks That Really Bring the Heat." Serious legal observers, on the other hand, had a very different reaction. Was the Notorious RBG starting to believe her own hype?
It sure seemed like her celebrity status had gone to her head. Not only was it totally inappropriate for a sitting justice to sling mud at a major party's presidential candidate, but it would raise inevitable calls for Ginsburg's recusal if Trump won and his administration appeared before her in court. Also, it was just dumb politics—a fact that Trump was smart enough to recognize right off the bat. As he told the Times, getting attacked by Ginsburg "only energizes my base even more."
A much-chagrined Ginsburg eventually backed down. "On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them," she said in a statement. "Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect."
How will future generations remember Ruth Bader Ginsburg? "Ginsburg's legacy," observed the liberal legal pundit Kenneth Jost in 2013, "will depend in part on whether she makes the right decision about the best time to step aside."
It was a blunt analysis, motivated by naked partisan calculations, but Jost did have a point. If Ginsburg had retired while President Barack Obama was in office and the Democrats still controlled the Senate, thereby ensuring that a liberal-minded jurist would take her place on the bench, her status as a liberal icon would have been cemented. Indeed, she would have gone out as a sort of conquering hero of the left.
But of course Ginsburg did not step down at that time. As a result, there is now a very real chance that the 85-year-old justice might be forced to retire for health reasons with both the White House and the Senate in the hands of the GOP. Should that scenario unfold, Ginsburg's future legacy, even among the progressive left, is unclear. Will she be remembered as a legal trailblazer who helped to shape the course of constitutional law? Or will she be burned in effigy for "letting" Trump pick her replacement? Ginsburg's critics on the right, meanwhile, might just end up thanking her for sticking around for so long.
When it comes to the case of the Notorious RBG, the jury is still out.